Law & Disorder —

Australia confirms ISPs are not copyright cops

A second court ruling from Australia has confirmed that Internet providers don …

The Federal Court of Australia has dismissed a case (read the ruling) from the movie industry which argued that ISPs must take action against file-swappers, based on allegations of infringement from copyright holders. The case against ISP iiNet was an appeal of the original judgment in the matter, which also went against rightsholders.

The appeal, considered by three judges, is remarkably long—and thorough. (It includes sentences like, "Computers operate by means of binary code. A bit is either a zero or a one. A byte is 8 bits. A kilobyte is 1,024 bytes, a megabyte is 1,024 kilobytes and a gigabyte is 1,024 megabytes.")

In 2008, the Australian Federation Against Copyright Theft (AFACT) hired a monitoring company to scan BitTorrent networks for infringement. The company compiled a list of iiNet IP addresses sharing copyrighted films and then sent the list on to iiNet, demanding that it take action against subscribers using those IP addresses.

Leroy Parkinson of iiNet replied. "The response was by way of e-mail, the language and tone of which can fairly be characterized as dismissive," said the court. "After acknowledging receipt of the Infringement Notices, Mr Parkinson said that iiNet was very concerned about the allegations and suggested that AFACT promptly direct its allegations to 'the appropriate authorities.' He then referred to the enclosed spreadsheets containing IP Addresses, dates, time and other details, which, he said, were not explained and some of which iiNet did not understand."

AFACT replied in kind, trying to help Parkinson "understand." A few days later, Parkinson replied once more. "Mr. Parkinson’s e-mail of 12 August 2008 reiterated that an IP Address, date and time did not identify a person, and asserted that iiNet could not possibly know the identity of the person who was using any given service associated with that IP Address. Mr Parkinson pointed out that the service could be a shared or community terminal, such as at a school, a library, an internet café or a WiFi hotspot. He said that it may not be a computer in the sole use of an individual. Mr Parkinson asked who, in any of the material provided, had been identified by AFACT as the person to whom iiNet should direct the allegation of copyright infringement."

Translation: call the police, not us. (iiNet said that it had, in fact, forwarded all such complaints to the state police.)

Instead, Roadshow Films, whose movies were being shared, sued iiNet on the grounds that the ISP was authorizing copyright infringement and not taking the necessary steps to curtail it. Two hearings on the matter have now been held, and both have rejected the rightsholder position; ISPs do no have an automatic duty to sanction subscribers upon receipt of allegations against them.

Jo Blow

During the first trial, iiNet CEO Michael Malone was asked whether iiNet had ever terminated a subscriber for repeat infringement. No, said Malone, it had not, because "no one had been found [by a judge] to infringe copyright"; all iiNet had were mere allegations of wrongdoing. The studios' lawyer then asked Malone if this was some kind of "joke" response. As the trial judge noted, "The respondent’s policy was not a joke, and its conduct was entirely consistent with the policy as outlined even though it may not have been the kind of policy that the applicants anticipated."

Malone then irritated the studios further with his comment that iiNet was simply not prepared to act on infringement notices received from just any "Jo Blow." The studios' response was priceless: "The applicants submit that they, being the major film studios, could not possibly be considered ‘Jo Blow’ when copyright infringement of their films is under consideration."

Malone said in a statement after the new ruling that movie companies' best defense against piracy was more legitimate outlets for content. "We urge the Australian film industry to address the growing demand for studio content to be delivered in a timely and cost effective manner to consumers and we remain eager to work with them to make this material available legitimately," he said.

Electronic Frontiers Australia congratulated iiNet and "compliments the company for putting up a strong defense against copyright owners in a context where—worldwide—Internet companies and legislators have buckled under industry pressure."

The new ruling doesn't give ISPs total freedom to ignore what's happening on and through their networks, however. The court made clear, in future cases, it is possible an ISP could be found to have "authorized" infringement based on the specific facts of a case. "It does not necessarily follow from the failure of the present proceeding that circumstances could not exist whereby iiNet might in the future be held to have authorized primary acts of infringement on the part of users of the services provided to its customers under its customer service agreements," said the chief judge.

And it's pretty logical explanation by ISP lawyers. You just can not take actions upon someone if some other says he is guilty. The only possible way to say someone has break some law is by official judge statement. Court can order ISP to identify location of that IP and then somehow try to find out who used that IP from that location on that specific time or who held responsibility over that IP usage ATM.

Of course, it can be also managed by agreement signed by customer and ISP, but no ISP would put itself in a mess like that.

Malone said in a statement after the new ruling that movie companies' best defense against piracy was more legitimate outlets for content. "We urge the Australian film industry to address the growing demand for studio content to be delivered in a timely and cost effective manner to consumers and we remain eager to work with them to make this material available legitimately," he said.

I am glad that this case was very logic. The industry lawyers should try logic as well. ISP's can't be the judge and jury. It's pretty simple. NAT is used everywhere and therefore many people (machines) are using the same IP address. Score one for the gipper!

Leroy Parkinson of iiNet replied. "The response was by way of e-mail, the language and tone of which can fairly be characterized as dismissive," said the court.

==> That's why iiNet got sued: They didn't kiss the [ring] of AFACT.

During the first trial, iiNet CEO Michael Malone was asked whether iiNet had ever terminated a subscriber for repeat infringement. No, said Malone, it had not, because "no one had been found [by a judge] to infringe copyright"; all iiNet had were mere allegations of wrongdoing. The studios' lawyer then asked Malone if this was some kind of "joke" response.

==> Translation: "What, us subject to the same laws as the riffraff? Is this a joke?"

As the trial judge noted, "The respondent’s policy was not a joke, and its conduct was entirely consistent with the policy as outlined even though it may not have been the kind of policy that the applicants anticipated."

Malone then irritated the studios further with his comment that iiNet was simply not prepared to act on infringement notices received from just any "Jo Blow." The studios' response was priceless: "The applicants submit that they, being the major film studios, could not possibly be considered ‘Jo Blow’ when copyright infringement of their films is under consideration."

My deep love of iiNet now knows no bounds. The utter arrogance displayed by AFACT's lawyers is incredible though, they weren't exactly arguing from a position of strength to begin with. They're lawyers and they don't understand due process? Crikey mate.

I once downloaded a movie and it had the crappy message of "if pirated etc etc blah blah please call AFACT on xxxx"... so I did, from Sweden.I told them I had a movie that had their message scrolling so I am calling in to report it...they asked me the title and I gave it to them...they asked me where I was calling from I said Sweden...they asked me if I bought it from a venderI said no, I had downloaded from one of the online sites...

They asked which one and I said, you know, ThePirateBay - the ones who totally make fools of all you idiots ( and I couldnt stop laughing)

An IP address does not identify a person, but an Internet subscriber does bear some responsibility for the traffic going over their connection if they authorized someone to use that connection.

Why? If I allow someone to use the scanner hooked up to my computer and they copy a piece of art, print it out, and then put it on their wall, should I be held responsible?

Also, italicized word is very hard to prove wrt open WiFi, or communal computer (library, dorm room, etc.). Also, if I authorized someone to use my Internet access to read their e-mail and instead they download a movie, how should I be responsible for something I didn't authorize?

An IP address does not identify a person, but an Internet subscriber does bear some responsibility for the traffic going over their connection if they authorized someone to use that connection.

What if they did not authorize someone to use that connection?

Like they were having a party and one of their guests used their computers, then what?

EDIT:And courts around the world have said time and again (like this one: http://www.out-law.com/page-9264) people are NOT responsible if someone else abuses their connection (no matter how much the scumbags at in the "creative industries" cry and want it so).

Having read the lead judges comments, certainly seems like the devil is in the details for ISPs. Part of the lead judges determinations shows he envisages a warning system leading to termination of P2P users - and it says iiNet would have to implement something of the sort as the other rulings says it doesn't have benefit of safe harbour, nor any other defence for not taking steps to disconnect users subject to the quality of the notices from AFACT.

An IP address does not identify a person, but an Internet subscriber does bear some responsibility for the traffic going over their connection if they authorized someone to use that connection.

This case was really about ISP responsibility rather than who bears the blame for pirating content; line owner vs the person committing infringement.

Looking at the article, ISPs were doing what it really should do by forwarding the allegation of illegal activity to someone who has jurisdiction to act upon the allegation rather than taking the responsibility upon themselves. Their stance seems to be "We are happy to do whatever you want as long as the law allows and demands us to hand over our clients' private information over to you."

During the first trial, iiNet CEO Michael Malone was asked whether iiNet had ever terminated a subscriber for repeat infringement. No, said Malone, it had not, because "no one had been found [by a judge] to infringe copyright"; all iiNet had were mere allegations of wrongdoing.

This is the argument I make EVERY single time Ars posts a similar article: DUE PROCESS OR BUST.

Right now, in the US copyright holders can send a list of IPs to an ISP and the ISP will dole out copyright notices and in some cases suspend or outright cutoff the Internet connection WITHOUT ANY PROOF.

Hasn't anyone considered how this could be used maliciously? They're not even required to prove the file being downloaded is actually what it SAYS it is. Anyone who's ever downloaded a torrent knows that they periodically get an episode of Sesame Street instead of The Office, when it's clearly labeled "THEOFFICE_s01e2_FULL.mkv".

Example: I'm Jo Blow copyright holder. I know how to upload a torrent. I upload a bogus file, wait for Jo Sixpack to download it, then call foul with his ISP. Or, I skip the 2nd step and cry wolf.

Either way, copyright is a LEGAL issue for a CIVIL court to decide, in which the accused is still innocent until proven guilty.

The way copyright monsters and ISPs are allowed to carry on is in blatant disregard for the judicial system. The people as a whole should sue the ISPs for violation of the service contracts they sign when subscribing if they experience an interruption in service prior to a just legal process which determines they are (or are not) at fault for a copyright violation.

Either way, copyright is a LEGAL issue for a CIVIL court to decide, in which the accused is still innocent until proven guilty.

One thing to note here is that civil cases have much lower threshold on burden of proof; which might be the reason why copyright infringement cases, as much as studio claim as "theft", rarely goes into criminal court.

That said, studios bypassing legal system and going straight to the ISP is still INCREDIBLY dodge.

An IP address does not identify a person, but an Internet subscriber does bear some responsibility for the traffic going over their connection if they authorized someone to use that connection.

No. They don't.

They do. They bear about as much responsibility as a city construction corporation/city government bears for people who use their roads to drive to X location to drive drunk, get into accidents, commit murders, steal stuff, etc. (i.e. they might take responsibility, in the case of the example, when someone goes on a high speed chase and kills people in the process, but it's not their fault, in my opinion, and ISP's aren't going out of their way to take responsibility for the things people do over their network, so it's not an issue in my opinion).

An IP address does not identify a person, but an Internet subscriber does bear some responsibility for the traffic going over their connection if they authorized someone to use that connection.

I totally agree with d_jedi: I pay my ISP (iinet as it happens) to have the responsiblity of delivering me the services I pay for, which is broadly speaking, TCP/IP, UDP and some SIP/VOIP thrown in for 9.95 a month too.

Surely d_jedi didn't mean to say my ISP has responsibility to police the content of the low-level services I pay for? Jeepers, it's like saying the police should have responsiblity for iinet's router settings.

EDIT: or the companies that sell space on their antenna towers to police the content of the signals they rebroadcast; or you mobile phone company to police the content of your texts and calls and photos. All the same isn't it?

Translation: call the police, not us. (iiNet said that it had, in fact, forwarded all such complaints to the state police.)

Why would you call the police when it's a civil matter, not a criminal one?

(I'm very interested in this, since I'm an Australian and have had emails forwarded to me by my ISP in regards to copyright infringement claims.)

It is a criminal matter, it is illegal. It's just way easier to get the result these media companies want thrugh a civil trial were they have no need to provide any real proof. If it is pursued criminally it would take being caught 'with your pants down' to get a conviction.

Translation: call the police, not us. (iiNet said that it had, in fact, forwarded all such complaints to the state police.)

Why would you call the police when it's a civil matter, not a criminal one?

(I'm very interested in this, since I'm an Australian and have had emails forwarded to me by my ISP in regards to copyright infringement claims.)

It is a criminal matter, it is illegal. It's just way easier to get the result these media companies want thrugh a civil trial were they have no need to provide any real proof. If it is pursued criminally it would take being caught 'with your pants down' to get a conviction.

Sorry, you're very, very wrong. Copyright infringement is a civil matter. (At least, in this country it's civil. I don't know about the US).

This is why they have to take you to court with privately gathered evidence. The police don't chase up your IP logs, and the copyright holders have to ask the court to get access to them (and their usually denied).

Essentially, the Government has said that they will look at clearing it up by expanding safeguard provisions for carriers such as ISPs, and applying them to other content providers such as search engines. The Attorney General also stated he will ask for submissions on extending exemptions for copyright law to new areas (such as DVD backups for education).

Been an iinet customer for over 7 years. Their services and polices never disappointed me.

I've been a TPG customer for... um... at least a few years. Their services (in general) and polices never disappointed me. Their customer support, however, is shithouse. If I could reach down the phone and slap those fuckers in ... the Philippines (I think) I would.

Did you know that Seamonkey spellcheck wants to turn "Philippines" into Philistines or "Phallic pics"?

EDIT: Since I just copied and pasted Tachikomas post I didn't notice - Apparently iinet and TPG polices without policies.